Ten Ways States Can Combat Ocean Acidification (and Why They Should)

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1 From the SelectedWorks of Ryan P Kelly January 2013 Ten Ways States Can Combat Ocean Acidification (and Why They Should) Contact Author Start Your Own SelectedWorks Notify Me of New Work Available at:

2 Ten Ways States Can Combat Ocean Acidification (and Why They Should) Ryan P. Kelly 1 and Margaret R. Caldwell 2,3 Forthcoming in February, 2013, Harvard Environmental Law Review Abstract... 2 I. Introduction... 2 II. The Science of Ocean Acidification... 5 Chemistry... 5 Ecology and Biology... 7 III. Federal and International Response... 9 IV. Incentives and Rationale for Sub- National Action The Costs and Benefits of Action State No More Stringent Laws V. Ten Suggestions for State and Local Action ) Create More Stringent Technology- Based Clean Water Act Standards for the Most Harmful Point Sources ) Change Water Quality Criteria for Marine ph and Related Parameters a. TMDLs for Non- Atmospheric Drivers of Acidification b. Criteria and TMDLs for Atmospheric Drivers of Acidification ) Create New Water Quality Criteria for Complementary Parameters; Create New Designated Uses a. Additional Water Quality Criteria to Aid Carbonate Chemistry Monitoring b. New Designated Uses for Coastal Waters ) Use the Clean Air Act to Decrease SOx/NOx Deposition Near Coast ) Enhance Wastewater Treatment at Publicly- Owned Treatment Works ) Leverage CWA 319(h) Money to Implement Enduring Best Management Practices (BMPs) and Permanent Nutrient- Management Improvements ) Participate in the National Estuary Program and the National Estuarine Research Reserve System ) Incorporate Ocean Acidification Impacts into Environmental Review under State NEPA Equivalents ) Direct Action to Enforce: Public Nuisance and Criminal Statutes ) Practice Smart Growth and Smart Land Use Change Direct CO2 Management VI. Conclusion Analyst for Science, Law, and Policy, Center for Ocean Solutions, Stanford University. J.D., University of California, Berkeley, School of Law (Boalt Hall), Ph.D., Columbia University. 2 Executive Director, Center for Ocean Solutions, and Director, Environmental and Natural Resources Law & Policy Program, Stanford University. J.D., Stanford University. 3 The authors wish to acknowledge valuable input from Debbie Sivas, Michael Thomas, Al Wanger, Karen Worcester, Mark Gold, Brad Warren, Skyli McAfee, Sarah Sikich, Larry Crowder, Matt Armsby, Ashley Erickson, and Melissa Foley. David Weiskopf provided legal research that substantially improved the product. 1

3 Abstract The ocean is becoming more acidic worldwide as a result of increased atmospheric carbon dioxide (CO2) and other pollutants. This fundamental change is likely to have substantial ecological and economic consequences globally. In this Article, we provide a toolbox for understanding and addressing the drivers of an acidifying ocean. We begin with an overview of the relevant science, highlighting known causes of chemical change in the coastal ocean. Because of the difficulties associated with controlling diffuse atmospheric pollutants such as CO2, we then focus on controlling smaller- scale agents of acidification, discussing ten legal and policy tools that state and local government agencies can use to mitigate the problem. This bottom- up approach does not solve the global CO2 issue, but instead offers a more immediate means of addressing the challenges of a rapidly changing ocean. States have ample legal authority to address many of the causes of ocean acidification; what remains is to implement that authority to safeguard our iconic coastal resources. I. Introduction Ocean acidification is known as the other CO2 problem; 4 that is, the problem that has received much less attention than climate change, but which is also caused by rising atmospheric CO2. The ocean absorbs roughly one third of the CO2 that humans release into the atmosphere annually, 5 and incorporating such a massive amount of that dissolved gas has made the worldwide ocean significantly more acidic than it was during the preindustrial era. 6 A more acidic ocean has begun to dissolve the shells and other hard parts of marine organisms, and threatens to fundamentally change the marine ecosystems on which a large fraction of the world depends for sustenance, 7 recreation, and a host of other services. 8 This is thus an environmental issue with national and international implications, reaching beyond the coastal states whose shores are most directly threatened. One report estimates that [m]ore than one third of the world s population will be strongly affected by acidification. 9 These challenges demand governmental action to mitigate the causes and 4 See S.C. Doney et al., Ocean Acidification: The Other CO 2 Problem, 1 Annual Reviews of Marine Science 169 (2009). 5 Id. at J. Raven et al., Royal Society Policy Document 12/05, Ocean Acidification Due to Increasing Carbon Dioxide, at vi (2005)(available at: 7 The people of some countries depend upon seafood for more than 50% of their protein (including Indonesia, Cambodia, and Bangladesh); many more countries receive at least 15% of their dietary protein from seafood. See S.R. Cooley et al, Ocean Acidification s Potential to Alter Global Marine Ecosystem Services, 22 Oceanography 172, 177 (2009)(citing Food and Agriculture Organization of the United Nations (FAO), The State of Fisheries and Aquaculture 2008 (2009)). 8 Id. at E. Harrould- Kolieb, M. Hirshfield, and A. Brosius, Major Emitters Among Hardest Hit by Ocean Acidification: An Analysis of the Impacts of Acidification on the Countries of the World, at 2 (December 2009), available at: 2

4 effects of acidification to address immediate and impending harms to fisheries, shellfisheries, and the communities that depend upon them. Ocean acidification is a large- scale environmental problem with classic externalities: rising atmospheric CO2 causes wholesale changes to ocean chemistry worldwide, while larger CO2- emitters do not experience greater harm than do lesser emitters. 10 Worse, the problem has been invisible until very recently. Although it has long been clear that the ocean absorbs large volumes of atmospheric CO2, 11 only in the last decade has the resulting change in acidity received real scientific attention. 12 Those past ten years have seen an explosion of primary scientific literature, 13 but almost no legal analysis or commentary. As a result, the legal and policy options lag behind the science even as improved understanding of the phenomenon opens up new policy avenues to combat the global change. Fixing the problem of ocean acidification will ultimately require that we fix the atmospheric CO2 problem: humanity must stop pouring tens of billions of metric tons 14 of CO2 into the air each year. But the CO2 problem has been the subject of much ink over the past two decades, 15 and a legislative solution is still nowhere on the horizon in the United States. That we have failed to regulate CO2 domestically is not surprising, given the institutional incentives and vested interests aligned against the change. 16 Kyoto and hopeful hints from Durban notwithstanding, 17 the prospects for an international accord for regulating greenhouse gases into the future is similarly bleak That is, emitters as individuals do not experience harm in proportion to their emissions. As nations, however, the story is quite different: a 2009 Oceana report found that nations with the highest emissions tended to be the most vulnerable to harm from ocean acidification. See generally, id. Six of the top ten emitting nations were also among the top 25 most vulnerable nations. Id. at 2. This analysis suggests the existence of direct incentives for these and other nations to minimize their CO 2 emissions. The authors estimated vulnerability using fish consumption per capita, coral reef area as percentage of exclusive economic zone, total catch, and oceanographic parameters. Id. at See R. Revelle and H. Suess, Carbon Dioxide Exchange Between Atmosphere and Ocean and the Question of an Increase of Atmospheric CO 2 During the Past Decades, 9 Tellus 18, 19 (1957)(citing Arrhenius, 1903). 12 See J. Kleypas et al., Geochemical Consequences of Increased Atmospheric Carbon Dioxide on Coral Reefs, 284 Science 118 (1999) scientific papers on ocean acidification were published in 2011 alone. See note ##, infra. 14 For 2008, the most recent year for which Oak Ridge National Laboratory estimates are available, the global total emissions from burning fossil fuels was 8749 million metric tons of carbon, or billion metric tons of CO 2 equivalent. See (last visited Jan 25, 2012). 15 See, e.g., Intergovernmental Panel on Climate Change, Climate Change 2007: Synthesis Report, Summary for Policymakers 1 (2007) and its many citing references. 16 See, e.g., S. Mufson, Climate Change Debate Hinges on Economics, Washington Post (Jul. 15, 2007)(discussing the then- current legislative proposals for a cap- and- trade system to limit emissions, and noting such a system would alter the calculations of almost every business; hundreds of billions of dollars of energy investments would be redirected. ) 17 The Kyoto Protocol, an agreement among the great majority of the world s nations to attempt to stabilize greenhouse gas emissions, will begin to expire in Kyoto Protocol To The United Nations Framework Convention On Climate Change, Art. III. The recent Council of the Parties (COP- 17) at Durban, South Africa, focused on moving toward a successor treaty. See cmp7durban.com/ (last visited Dec. 15, 2011). 18 See, e.g., The Economist, Climate Change: The Other Greenhouse Gases, Babbage Science & Technology Blog (Feb. 20, 2012)(www.economist.com/blogs/babbage/2012/02/climate- change, last visited Feb. 21, 2012)( The UN s climate change summit in Durban last December confirmed how far the world is from 3

5 With domestic gridlock apparent, it makes increasing sense to focus on smaller units of government as the prime movers on environmental issues. This is not a new idea, and particularly not with respect to CO2 and climate change. Within the U.S., cities, counties, and states have moved towards more greenhouse- gas- friendly policies in the absence of federal leadership, and this trend has been well cited. 19 Regional climate initiatives play similar roles on somewhat larger spatial scales. 20 And while the jury is still out on whether these efforts will curb the stratospheric rise in emissions, 21 such sub- national progress is progress nonetheless and helps demonstrate the efficacy of mechanisms that could be adopted more widely. What makes ocean acidification particularly amenable to smaller- scale mitigation, however, is the many existing legal tools available and up to the task. Even if we still lack the fortitude to tackle CO2 emissions at a large spatial scale, fast- moving science in significant part funded by the U.S. federal government continues to reveal important details about the mechanisms by which the ocean s chemistry is changing. Those details, in turn, represent newly recognized means of ameliorating the effects of acidification using tools already in our legal toolbox. In this article, we briefly review the science of ocean acidification and why it poses a fundamental challenge to ocean ecosystems and many of the services those systems provide. We next review federal and international actions in response, finding that most of these focus on research rather than action. To address this shortfall, we then provide a toolkit for action at the state, tribal, and local levels within the United States, discussing ten specific points of action. These points focus primarily on water quality, but also include air quality, state environmental impact statutes, common law causes of action, and changes in land use. 22 Focusing on governance at smaller spatial scales changes the calculus of incentives. Accordingly, we emphasize actions more closely aligned with local benefits, identifying incentives tailored to the appropriate spatial scale. This bottom- up approach does not solve the global CO2 problem, but instead offers a way forward on an otherwise (seemingly) intractable problem. We hope to provide a means of buying time and improving the quality of state waters, to minimize the economic and environmental impacts of acidification in the near term. In the background, of course, is the fact that we cannot solve ocean acidification without solving the global CO2 emissions problem. limiting its emissions of carbon dioxide, the main greenhouse gas. Everyone agrees that this must be done, but not on who, exactly, should do it. ) 19 See, e.g., K.H. Engel & B.Y. Orbach, Micro- Motives and State and Local Climate Change Initiatives, 2 Harv. L. & Policy Rev. 119 (2008); R.B. McKinstry, Jr., Laboratories for Local Solutions for Global Problems: State, Local and Private Leadership in Developing Strategies to Mitigate the Causes and Effects of Climate Change, 12 Penn State Environmental Law Review 15 (2004). 20 See, e.g., K.H. Engel, 14 Mitigating Global Climate Change in the United States: A Regional Approach, NYU Environmental Law Journal 54 (2005). 21 Global emissions in 2010 were the highest on record for the industrial age, and the highest since in at least 800,000 years. See compact.htm. 22 We note that acidification also threatens the Great Lakes and other freshwater bodies. We concentrate here on marine protection, but many of the approaches to mitigating ocean acidification apply equally well to management of the Great Lakes and similar systems. 4

6 II. The Science of Ocean Acidification Chemistry Atmospheric CO2 dissolves in water, making it more acidic; 23 this is why carbonated soda water is more acidic than regular tap water. Since the industrial revolution, this phenomenon has played out on a global scale: the oceans have become more acidic as they have absorbed a large portion of the anthropogenic increase in atmospheric carbon dioxide. 24 This change threatens to disrupt large- scale marine ecosystems and the economic and social activities that depend upon those ecosystems, 25 in part because the shells and other hard parts of marine animals dissolve more readily in more acidic water. 26 Acidified water from the deep ocean is also reaching into shallower depths than in the past, 27 and because the rate at which atmospheric CO2 is increasing continues to accelerate, the rate at which we are changing the ocean s chemistry is accelerating in kind. 28 These changes are now well- documented and there is a broad scientific consensus that increasing atmospheric CO2 is the primary mechanism driving the observed change. Deposition of sulfur oxides (SOx) and nitrogen oxides (NOx) familiar as the causes of acid rain also directly lower ocean ph, and may strongly influence the chemistry of coastal waters as a result of local production by heavy industry. 29 Indirect drivers of ocean acidification include nutrient runoff, which plays an important role in altering marine carbonate chemistry. 30 Nutrient pollution causes local acidification through feedback loops involving biological growth, metabolism, and decay, over and above that which would occur in the absence of nutrient input from humans. 31 These processes use more oxygen than they produce, causing oxygen minimum zones ( dead zones ), and resulting in locally- acidified waters. 32 More acidic, lower- oxygen 23 Raven et al., supra, at vi. 24 S.C. Doney et al., supra, at Id. 26 Id. 27 This is known as shoaling of more corrosive waters; see, e.g., C. Hauri et al., Ocean Acidification in the California Current System, 22 Oceanography 61, 69 (2009). Note that more acidic water from the deep ocean routinely comes to the surface near the coastal margins as a result of normal upwelling processes, but that increased amounts of dissolved CO 2 in the ocean can lead to more pervasive intrusion of these more acidic waters into shallower depths. 28 K. Caldeira & M.E. Wickett, Anthropogenic Carbon and Ocean ph, 425 Nature 365 (2003). 29 S.C. Doney et al., Impact of Anthropogenic Atmospheric Nitrogen and Sulfur Deposition on Ocean Acidification and the Inorganic Carbon System, 104 Proceedings of the National Academy of Sciences 14580, (2007). Note that this deposition is likely to be a larger factor on the East Coast, where coal- fired power plants are much more common than on the west coast. 30 See A.V. Borges & N. Gypens, Carbonate Chemistry in the Coastal Zone Responds More Strongly to Eutrophication than to Ocean Acidification, 55 Limnology & Oceanography 346 (2010)(modeling the relative impacts of nutrient loading and CO 2- driven acidification in the Belgian Coastal Zone, and finding significantly greater effects of nutrient runoff than atmospheric CO 2 on ocean ph.) 31 W.- J. Cai et al., Acidification of Subsurface Coastal Waters Enhanced by Eutrophication, 4 Nature Geoscience 766 (2011). 32 See, e.g., R.J. Diaz and R. Rosenberg, Spreading Dead Zones and Consequences for Marine Ecosystems, 321 Science 926 (2008). 5

7 waters are likely to have both chronic and acute environmental impacts, including a decline in biomass productivity important to fisheries. 33 These root causes of acidification including atmospheric CO2, nutrient runoff, and SOx / NOx deposition then interact with oceanography to create a patchwork of coastal effects. 34 In areas along continental margins where colder, more acidic water from the deep ocean is drawn up to the surface ( upwelling zones ), such as along the west coast of the United States, local hotspots of ocean acidification develop. 35 Upwelling is a normal oceanographic process, but upwelled water appears to have become more acidic as a result of dissolved anthropogenic CO2. 36 This more corrosive water is already apparent at the surface in upwelling zones near Cape Mendocino in northern California, and is likely happening at other prominent rocky headlands along the west coast. 37 Rising atmospheric CO2 and patchy upwelling along the shore are the baseline to which we add other stressors such as nutrient runoff. We cannot yet attribute a particular fraction of the observed change in coastal waters among atmospheric CO2, nutrient runoff, or other factors, 38 although in principle this will become possible as more data become available. While CO2 is the primary driver of the global background change in ocean ph, non- CO2 inputs may be more influential in specific coastal regions. 39 Overall, there is a strong consensus that: 33 Id. 34 Note, too, that changes to the hydrologic cycle for example, the increased freshwater runoff predicted in northern California due to climate change will also influence the distribution of acidified hotspots in the coastal ocean. See M.A. Snyder and L.C. Sloan, Transient Future Climate Over the Western United States Using a Regional Climate Model, 9 Earth Interactions 1 (2005)(predicting large increases in precipitation in northern California during winter toward the end of the twenty- first century). However, over much longer time periods of millions of years, increased precipitation weathers terrestrial rocks more quickly and tends to buffer ocean ph. See L.R. Kump et al., Ocean Acidification in Deep Time, 22 Oceanography 94 (2009). 35 See R.P. Kelly et al., Mitigating Local Causes of Ocean Acidification with Existing Laws, 332 Science 1036 (2011). 36 See, e.g., Feely et al., supra. 37 R. Feely et al., supra, Fig. 1 (showing corrosive waters at several coastal locations); subsequent personal communications are in accord. 38 In part, this difficulty stems from the large natural variation in coastal waters. Shallow ocean waters, bays, and estuaries experience fluctuations of ph and related measures over the course of hours and days. These rapid swings are driven by tides, freshwater input, photosynthesis, shell formation, and respiration, among other factors. See generally R.E. Zeebe and D. Wolf- Gladrow, CO 2 in Seawater: Equilibrium, Kinetics, Isotopes (2001). For an example of these changes in the intertidal zone on the exposed Washington coast, see J.T. Wootton, C.A. Pfister, and J.D. Forester, Dynamic Patterns and Ecological Impacts of Declining Ocean ph in a High- Resolution Multi- Year Dataset, 105 Proc. Natn l Acad. Sci (2008). Daily and monthly variation in ph at a given coastal site may be of larger magnitude than the entire observed change in baseline ocean ph due to anthropogenic CO 2 and such natural variability poses a challenge for discerning the effects of pollution from natural background variation at small scales. Id.; L.- Q. Jiang et al., Carbonate mineral saturation states along the U.S. East Coast, 55 Limnology & Oceanography 2424 (2010). For example, in San Francisco Bay in July 2011, the measured ph varied between 8.2 and 7.8 within a week. Data from the Romberg Tiburon Center, San Francisco State University; see Appendix III. By contrast, it is estimated that the global ocean ph change due to anthropogenic carbon dioxide input is 0.1 ph units. R.A. Feely, et al., Impact of Anthropogenic CO 2 on the CaCO 3 System in the Oceans, 305 Science 362 (2004). 39 See Doney et al., supra note 29; Feely et al., supra; Cai et al., supra note 31; Borges and Gypens, supra note 30. 6

8 1) Coastal acidification is more severe and more rapid in some places due to oceanographic features, biological effects, and land- based pollutants; 40 2) The chemical changes to the coastal ocean are due to a combination of atmospheric CO2 and other pollutants including atmospheric deposition of sulfur and nitrogen compounds, and terrestrial nutrient runoff, 41 as well as possible increases in freshwater input and upwelling; 42 and 3) Acidification adds yet another stressor to a growing list of threats to ocean health including overfishing, habitat destruction, and climate change. 43 Acidification could alter marine food webs substantially, 44 and this may undermine the nearshore ecosystem s ability to produce goods and services worth billions of dollars annually. We have already observed changes in marine ecosystems as a result of increasingly acidic waters. More change is inevitable, both because of lag time associated with ocean circulation patterns 45 and because humanity s CO2 emissions are unlikely to decline suddenly and precipitously. However, mitigating the causes of ocean acidification at present will pay dividends immediately and in the future, safeguarding a public resource that is a critical center of biological diversity, cultural value, and economic benefit to local communities. Ecology and Biology An ecosystem is the entire set of interactions among species (including humans) and nonliving components of an environment (such as temperature or sunlight). 46 It is 40 See, e.g., Kelly et al., supra note 35; Feely et al. 2008, supra. 41 See note 38, supra. 42 See J. Salisbury et al., Coastal Acidification by Rivers: A Threat to Shellfish? 89 Eos 513 (2008)(showing effect of acidic freshwater on coastal mollusc dissolution factor); Snyder and Sloan, supra note 34 (showing predicted increases in precipitation, and hence freshwater input, in northern California as a result of climate change); M. Garcia- Reyes and J. Largier, Observations of Increased Wind- Driven Coastal Upwelling Off Central California, 115 J. Geophysical Research C04011 (2010)(noting observed increases in coastal upwelling are consistent with model predictions due to climate change; more persistent or more extreme upwelling would also acidify coastal waters). 43 See, e.g., R.K. Craig & J.B. Ruhl, Governing for Sustainable Coasts: Complexity, Climate Change, and Coastal Ecosystem Protection, 2 Sustainability 1361 (2010); Millennium Ecosystem Assessment, Ecosystems and Human Well-Being: Synthesis (2005). 44 See UNEP Emerging Issues: Environmental Consequences of Ocean Acidification: A Threat to Food Security (2010)(available at: 45 Ocean water absorbs CO 2 from the atmosphere at the surface. After being submerged and transported by deep ocean currents, a particular water molecule may take decades to again reach the surface. Upwelling along the Pacific coast brings water to the surface that was last in contact with the atmosphere perhaps 50 years ago. To some extent, we are now experiencing acidification from the atmospheric CO 2 of the 1960s. This lag time postpones some of the effects of today s emissions, which are much larger than those of decades past. 46 Arthur Tansley is credited with coining the term ecosystem in 1935 to include not only the organism- complex, but also the whole complex of physical factors forming what we call the environment of the biome the habitat factors in the widest sense. A.G. Tansley, The Use and Abuse of Vegetational Concepts and Terms, 16 Ecology 284, 299 (1935). The term has been widely re- defined since, but retains a core meaning of an inclusive concept of the factors that affect living organisms on Earth. 7

9 therefore unsurprising that the biological and ecological effects of an acidifying ocean remain poorly understood relative to the chemistry described above. While adding dissolved CO2 to the ocean has eminently predictable effects on the ocean s chemistry, there is considerably more we need to learn about the effects of the same chemical change on the network of plants and animals whose interactions constitute the coastal ecosystem. One acidification- related metric of great importance for coastal ecosystems is the relative propensity of many marine organisms hard parts (such as mollusc shells) to dissolve in seawater. 47 As waters acidify, these hard parts have a greater tendency to dissolve. A growing body of research documents the negative impacts of acidified waters on organismal development, 48 suggesting that acidification in the coastal ocean has the potential to disrupt a wide swath of ecosystem functions. Because juvenile oysters and related species are especially susceptible to acidification, the shellfish industry is under particularly immediate threat. Various industry groups have already taken action to understand and combat the changes that face them. 49 More broadly, we do know that a more acidic ocean is likely to hinder growth in a wide variety of species, to increase the growth rate of some others, and to have little effect on still others. 50 At least under laboratory conditions, acidified seawater hampers calcification and reproduction in most animal species studied, and has either neutral or positive effects on photosynthesizing species. 51 Species with already marginal survival rates may be at special risk; for example, acidification further threatens the already- imperiled pinto abalone, whose larvae develop less successfully in a high- CO2 environment. 52 Changing the chemical environment could thus change the balance of power in predator- prey relationships and in competition among species; 53 in short, it could alter the 47 The measure of this propensity is known as the saturation state of calcium carbonate, the material of which most species hard parts are made. It is symbolized by a capital omega, and differs depending upon the particular form of calcium carbonate to which it refers. Because the principal forms are aragonite and calcite, this is written Ω arag and Ω calcite, respectively. Aragonite is more soluable, and therefore under greater threat from ocean acidification. A primary factor of interest is therefore Ω arag. 48 See, e.g., V.J. Fabry, et al., supra note See, e.g., Eric Scigliano, The Great Oyster Crash, On Earth (Aug 17, 2011), available at: crash- ocean- acidification; see also coverage of a recent ocean acidification workshop at the Virginia Institute of Marine Science, available at: 50 See J.B. Ries et al., 37 Geology 1131 (2009)(demonstrating developmental response to undersaturated seawater in eighteen species; of these, ten species had decreased calcification rates, seven had increased rates, and one had no response); S.C. Talmage and C.J. Gobler, Effects of Past, Present, and Future Ocean Carbon Dioxide Concentrations on the Growth and Survival of Larval Shellfish, 107 Proc. Natn l Acad. Sci (2010)(decreased and slower growth in two bivalve shellfish under modern CO 2 conditions as compared with preindustrial conditions); K. Kroeker et al., Meta- Analysis Reveals Negative Yet Variable Effects of Ocean Acidification on Marine Organisms, 13 Ecology Letters 1419 (2010); Doney et al., supra note Error! Bookmark not defined. at 176; V.J. Fabry et al., Impacts of Ocean Acidification on Marine Fauna and Ecosystem Processes, 65 ICES Journal of Marine Science 414, (2008). 51 See note 50 (describing variable response of organisms to acidified conditions). 52 See R.N. Crim et al., Elevated Seawater CO 2 Concentrations Impair Larval Development and Reduce Larval Survival in Endangered Northern Abalone (Haliotis kamtschatkana), 400 J. Experimental Marine Biology & Ecology 272 (2011). 53 For example, decreased shell thickness and strength in mussels under acidified conditions suggests that these species are likely to be more vulnerable to predation and breaking waves. B. Gaylord et al., Functional 8

10 ecological interactions that underpin the living ocean we see today. Commercially- important effects of this phenomenon include a significant decrease in salmon biomass, where a major food source of juvenile salmon is highly susceptible to acidified waters. 54 Direct human health impacts may include amnesic shellfish poisoning as a result of increased frequency and severity of harmful algal blooms, spurred by a high- CO2 ocean. 55 Of course, species have the capacity to evolve in response to environmental change, typically over long time horizons. One emerging question is whether and how today s species will evolve in response to ocean acidification. One recent study 56 estimates the different evolutionary capacities of two important nearshore species red sea urchins and mussels 57 and concludes the urchin species has a much greater capacity to adapt to acidified conditions. This work is the beginning of a larger effort to unravel the evolutionary consequences of acidification, and highlights the ecosystem changes that are inevitable as human pollution creates winners and losers among species in the coastal ocean. In short, there is little uncertainty surrounding the chemistry of ocean acidification, but the biological and ecosystem effects of those chemical changes are not yet as well understood. III. Federal and International Response The United States government has begun to take notice of the acidifying ocean in small but important ways. In 2009, Congress passed legislation focused squarely on ocean acidification, 58 establishing a federal interagency working group on the issue, 59 and a research program within the National Oceanographic and Atmospheric Administration. 60 An ocean acidification task force consisting of a collection of independent scientists and policymakers, 61 was convened to provide advice to the interagency working group. Finally, Impacts of Ocean Acidification in an Ecologically Critical Foundation Species 214 J. Experimental Biology 2586 (2011). 54 See Fabry et al., supra note 50 at Acidified waters sponsor both faster growth rates of harmful algal species as well as greater concentrations of domoic acid the toxin that causes amnesic shellfish poisoning in humans within algal cells. J. Sun et al., Effects of Changing pco 2 and Phosphate Availability on Domoic Acid Production and Physiology of the Marine Harmful Bloom Diatom Pseudo- nitzschia multiseries, 56 Limnology & Oceanography 829 (2011). 56 J.M. Sunday et al., Quantifying Rates of Evolutionary Adaptation in Response to Ocean Acidification, 6 PLoS One e22881 (2011), available at: 57 Strongylocentrotus franciscanus (urchins) and Mytilus trossulus (mussels). Id. 58 On March 30, 2009, President Obama signed the Federal Ocean Acidification Research and Monitoring (FOARAM) Act, 33 U.S.C et seq. (authorizing funding, developing interagency plan on ocean acidification, and establishing an acidification program within the National Oceanographic and Atmospheric Administration). Note, however, that the Act defines ocean acidification as a change in ocean ph from atmospheric and not also terrestrial anthropogenic inputs We use the broader definition. 59 See 60 See 61 The OA Task Force operates under the purview of the Ocean Research & Resources Advisory Panel, an advisory body that independent advice and recommendations to the heads of federal agencies with ocean- related missions. Ocean Acidification Task Force, Summary of Work Completed and Recommendations for ORRAP to convey to the IWGOA, at 2 (2011), available at: content/uploads/2010/03/oatf- REPORT- FINAL pdf. 9

11 the National Research Council has also issued a report 62 in response to a Congressional mandate in the 2006 Magnuson- Stevens Fishery Conservation and Management Act. 63 This report is an important marker, consolidating the available scientific information and identifying outstanding uncertainties to guide future research directions. 64 Federal research dollars have increasingly gone to support primary research on ocean acidification in the past two years. One metric for this rise is the number of National Science Foundation grants given to ocean acidification research: of the 177 grants with the phrase ocean acidification in the title or abstract of the award, 176 of them (99.5%) have been awarded since The overall amount of grant money awarded has increased sharply in recent years: between 2006 and 2008, NSF awarded a total of $19.7m for ocean acidification research; for 2009 to 2011, that number more than tripled, to $74.4m. 66 The results of this investment have been immediate and tangible, as the number of publications on ocean acidification has skyrocketed since Fully one- third of the primary scientific literature on ocean acidification has been published in 2011 alone, 68 a sign of tremendous growth in this area of research. Other nations have responded to ocean acidification in a similar fashion to the United States, sponsoring research and collaboration among scientists. 69 Germany s BIOACID program, for example, explores the responses of marine species to an acidifying ocean and to multiple related stressors. 70 China, Japan, and Korea have programs that do likewise. 71 The European Project on Ocean Acidification (EPOCA) is an international collaboration among 27 European member organizations, focusing on primary research issues and education. 72 These national and international actions highlight the importance of ocean acidification, and have already proved crucial in generating the research that underpins 62 National Research Council, Ocean Acidification: A National Strategy to Meet the Challenges of a Changing Ocean (2010), available at: https://download.nap.edu/catalog.php?record_id= See also the National Science and Technology Council s Joint Subcommittee on Ocean Science and Technology, Ocean Science in the United States for the Next Decade: an Ocean Research Priorities Plan and Implementation Strategy (Jan. 26, 2007), available at orppis.pdf. 63 P.L National Research Council, supra note 62, at 2. The report also notes the federal government has taken initial steps to respond to the nation s long- term needs and that the national ocean acidification program currently in development is a positive move toward coordinating these efforts. At The increase in per- year awards is also striking: 11 in 2006, 9 in 2007, 14 in 2008, 37 in 2009, 58 in 2010, 47 in Data from 66 Data from This total does not include $148m grant to the University of Alaska, Fairbanks, for shipyard construction costs (award number ). 67 Google Scholar (scholar.google.com) reports that of 9280 total publications responding to the search term ocean acidification, 7340 (79%) have been published since (69%) have come since 2008, and nearly half (3990, 43%) have come since 2010 (search performed Dec. 6, 2011). 68 BIOSIS search (webofknowledge.com; an authoritative database for scientific publications), 157 of 423 total records for topic = ocean acidification were published in 2011 (37.1%). Another 117 (27.6%) were published in 2010, and 85 (20%) in 2009 (last searched Jan 25, 2012). 69 See Heidi R. Lamirande, From Sea To Carbon Cesspool: Preventing the World's Marine Ecosystems from Falling Victim to Ocean Acidification, 34 Suffolk Transnational L. Rev. 183 (2011) for a review of foreign jurisdictions ocean acidification laws, as well as the applicability of international law. 70 See (last visited Dec 6, 2011). 71 Lamirande, supra, at See project.eu (last visited Dec 6, 2011). 10

12 our understanding of the phenomenon. However, every one of these efforts goes towards documenting and understanding what we already know is a problem. None of these actions affirmatively begins to fix the problem of ocean acidification. In large part, this lack of action is likely due to a daunting mismatch of incentives that has plagued efforts to reduce CO2 and other emissions. Below, we provide some concrete first steps that local and state governments can take now to mitigate the causes and effects of coastal ocean acidification. As we note above, these smaller spatial scales offer an immediate way forward, buying time while work progresses on a global CO2 solution. We focus on domestic laws of the United States, with a special emphasis on California because of its extensive water quality laws and economically important coastal resources. IV. Incentives and Rationale for Sub- National Action Environmental law often overlooks a key benefit of primary scientific research: the more we learn about the mechanisms of a particular environmental problem, the more legal hooks we can identify to address it. This is in many ways analogous to the relationship between medical research and drug development: more detail on precisely how a disease works yields more points of entry for a potential drug to disrupt the disease s progress. Taking the analogy one step further, it is much cheaper, faster, and easier to use existing drugs to fight off new diseases than it is to develop new drugs. Existing laws function in much the same way: ready- made tools that, if effective, are valuable means of addressing emerging problems such as ocean acidification. With this analogy in mind, the importance of new data becomes clear. Most pertinent is newly- available information that auxiliary (non- CO2) drivers contribute substantially to an acidified condition in some localities, and that these are most important in coastal regions. Near the coast is also where ecosystems are most productive, 73 where most people live, 74 and accordingly where there is the largest nexus of human- environment interaction and dependence. This is (relatively speaking) good news, because it means that the biggest problems near shore are the easier ones to fix: these stressors derive from local and identifiable sources, rather than global and diffuse CO2. Attacking the problem in the nearshore environment makes sense in at least two ways. First, it puts the focus on a primary site of anticipated harm. Second, it is a tenable means of mitigating acidification while international and national action on CO2 progresses too slowly, leaving a narrowing window for avoiding high consequence impacts within this century. As we head toward a profoundly changed world, in which the chemistry of the ocean has seen a wholesale shift, we must minimize the resulting societal and ecological harms in whatever ways we can. Fortunately, the acidification- mitigating avenues we discuss below dovetail with existing environmental priorities; there is little or no tradeoff between the demands of 73 See, e.g., F. Chan et al., Emergence of Anoxia in the California Current Large Marine Ecosystem, 319 Science 920 (2008). 74 For example, more than half of Americans live within 50 miles of the coast. (last visited Jan. 25, 2012). 11

13 current statutes and the means of addressing the emerging challenges of ocean acidification. Decreasing water and air pollution has been an important priority for many years; the new information about acidification simply strengthens the logic for environmental protection of our coasts. Acting to combat the observed and anticipated changes to the coastal ocean therefore represents a responsible path to safeguarding our nearshore ecosystems. The Costs and Benefits of Action Focusing on the state and sub- state jurisdictional levels eliminates any federalism concerns, because the states plenary power means that they certainly have the authority to regulate discharges and other inputs to coastal waters in the interest of public health and safety. 75 So in general, a state could act to ameliorate acidification by creating a more stringent standard, 76 but why should it want to? The efforts we discuss below each depend upon the willingness and ability of state administrative agencies to add ocean acidification to the portfolio of issues for which they are responsible. This is not a trivial hurdle. State environmental regulatory agencies have substantial counterincentives to tackling yet another environmental issue. 77 Limited (and shrinking) budgets may be the prime stumbling block in many cases, but institutional momentum, a workload full of existing priorities, and the significant political costs associated with any regulation all surely argue against taking on a new issue such as ocean acidification. But if this were the end of the calculation, arguably no environmental law would exist at all. A fair treatment of incentives and economic efficiency is well beyond the scope of this article, but we note that in order to tackle ocean acidification on a local scale, a state administrative agency s immediate incentives to do so must outweigh its incentives to the contrary. 78 This creates an activation energy, of a sort: a conflict between short- term and long- term interests. Even where long- term gains are likely to outweigh the short- term costs by a large margin such as is the case in acting to avoid environmental harms before they become expensive or impossible to rectify an agency s immediate incentives often prevent it from acting. Environmental regulation exists because it generates massive societal benefits. The distribution of regulation s costs and benefits, and the equity of those distributions, have 75 In California, for example, discharging waste into state waters is expressly a privilege, not a right; the civil code makes clear the state s intention to reserve its power to regulate discharges. Water Code But see the brief discussion on the no more stringent laws that exist in some states, infra. 77 The tension between agency mission and the nuts- and- bolts business of regulation is a classic administrative law problem of competing incentives. For example, agency incentives may be split between a mission to ensure the state s safe drinking water on one side, and robust political pressure from local agricultural or industrial interests to avoid onerous regulation on the other. See, e.g., M.C. Blumm, Public Choice Theory and the Public Lands: Why Multiple Use Failed, 18 Harvard Environmental Law Review 405 (1994) for a discussion of similar tensions in the context of public lands regulation. 78 See, e.g., Hegel & Orbach, supra, at 128 et seq., for a discussion of some incentives for small- scale environmental regulation that at first glance appear to be irrational. 12

14 been much discussed, 79 and individual command- and- control rules may be economically inefficient. But on the whole, the societal value of something like the Clean Air Act far exceeds the costs of its implementation. 80 Yet the immediate political pressure to avoid regulating the industries that generate the tax revenue and political favor is crushing. As we discuss various options for state action below, we note economic benefits that are likely to help ease the relevant actions. These benefits alone are unlikely to drive an agency decision as to whether or not to deal with acidification. This is especially the case where infrastructure upgrades are costly as in the case of publicly owned treatment works or where the political costs of regulation are especially high as in the case of nonpoint source regulation of irrigated agriculture. However, the primary function of state environmental agencies is to maintain and improve the quality of the environment in which its constituents live. 81 The harms associated with ocean acidification, though already being felt, are largely in the future the next decade will be worse than this decade, on average. Hence, the problem will eventually force its way onto the agendas of at least coastal resource and environmental agencies. A version of the bystander effect 82 may be helpful in convincing these agencies to act, even in the absence of action on the part of peer agencies. At the state level, environmental agencies are the only ones whose job it is to deal with at least some cause of a worsening problem, and therefore they may be more likely to address the problem than would be the case if they were merely one among many agencies with overlapping jurisdictions. 83 Perhaps through a combination of internal institutional motivation, economic benefits of 79 See generally, David M. Driesen, Distributing the Costs of Environmental, Health, and Safety Protection: The Feasibility Principle, Cost- Benefit Analysis, and Regulatory Reform, 32 B.C. Envtl. Aff. L. Rev. 1 (2005) and refs therein. 80 EPA, The Benefits and Costs of the Clean Air Act from 1990 to 2020, Summary Report at 2 (March 2011)(available at: The report estimates the annual cost of the Clean Air Act in 2020 will reach $65billion annually, with nearly $2trillion in annual benefits. This indicates the benefits of the Act, which are mainly in public health harms avoided, outweigh its costs by a ratio of approximately 30:1. 81 Washington State s Department of Ecology, for example, gives its mission as protect, preserve and enhance Washington s environment, and to promote the wise management of our air, land and water for the benefit of current and future generations. (last visited Dec. 15, 2011). South Carolina s Department of Natural Resources has a mission to serve as the principal advocate for and steward of South Carolina s natural resources. (last visited Dec. 15, 2011). Massachusetts Department of Environmental Protection s mission is ensuring clean air and water, among other functions. (last visited Dec. 15, 2011). Nearly all states have agencies with similar mission statements. Oklahoma s, interestingly, appears mainly concerned with aesthetics:...for a clean, attractive, prosperous Oklahoma. (last visited Dec. 15, 2011). 82 See J.M. Darley and B. Latané, Bystander Intervention In Emergencies: Diffusion Of Responsibility, 8 Journal Of Personality And Social Psychology 377 (1968)(describing situation in which a woman, Kitty Genovese, was stabbed to death in the middle of a New York City street over the course of more than half an hour, and yet none of at least 38 witnesses to the murder phoned the police. The authors use this incident as a springboard for research demonstrating a general phenomenon of the diffusion of responsibility, in which the known presence of other bystanders reduces one s feelings of personal responsibility.) 83 Anecdotal evidence suggests this phenomenon does occur. For example, staff members of California s Central Coast Regional Water Quality Control Board took on nonpoint source pollution creating toxic levels of pollutants in drinking water after being reminded that if they failed to act, no one else would. Personal communication from Michael Thomas, Deputy Executive Officer, Central Coast RWQCB, December 7,

15 harm avoided, and leadership from select jurisdictions with the greatest perceived threats, state and local agencies will begin to address acidification in a way that national and international governments have so far failed to do. Where available and where necessary, citizen suits could help this effort along. State No More Stringent Laws A special case of disincentives to using state law and regulation to combat environmental problems occurs where states have bound their own hands by adopting laws that link the stringency of state environmental regulation to the levels set by the federal government. These laws, known as no more stringent rules, effectively make federal environmental rules both a regulatory floor (under federal law) and ceiling (under state law), and function as barriers to state efforts to fill federal regulatory gaps. 84 Only five coastal states have such laws with respect to water quality. 85 Arguably, the impact of no more stringent laws has little practical effect. First, in no case are these laws incorporated into state constitutions. 86 As such, state legislatures may change these statutes or carve out exceptions to them by the same procedural means as would be necessary to amend the focal environmental laws themselves. In some states, the laws pose only minor hurdles, merely requiring an administrative justification for proposed rules that would impose stricter pollution controls. 87 In other states, case law has limited their effect by requiring strictly comparable federal and state regulations before weighing the relative stringency of proposed rules. 88 Finally, there remains the fact that even states without no more stringent laws rarely impose regulations beyond federal 84 For a discussion of these rules, and related state efforts to bolster property rights in such a way as to hamper environmental regulation, see generally Andrew Hecht, Obstacles to the Devolution of Environmental Regulation, 15 Duke Envtl. L. & Pol'y F. 105 (2004); Jerome M. Organ, Limitations on State Agency Authority to Adopt Environmental Standards More Stringent than Federal Standards: Policy Considerations and Interpretive Problems, 54 Md. L. Rev (1995). With respect to air quality, twenty- six states have similar no more stringent laws or policies. William L. Andreen, Federal Climate Change Legislation and Preemption, 3 Envt'l & Energy L. & Pol'y J. 280, 302 (2008)(noting also that, even in states that have not restricted themselves from requiring greater air quality, more stringent regulations are rare). 85 As of 2004, a total of seventeen states had general no more stringent laws regarding water quality; of these, only Florida, Maine, Maryland, Mississippi, and Pennsylvania (which has a strong influence on Delaware and Chesapeake Bays) are coastal. Hecht, supra note 84 at note 43. Under Hecht s ranking system, the laws of Maine and Maryland pose only low barriers to heightened water quality requirements, Pennsylvania and Florida have modest barriers, and Mississippi has a significant barrier to more stringent environmental regulation. Hecht at Id. at Maine, for example, has such a scheme. Hecht, supra note 84 at 122; Me. Rev. Stat. Ann. tit H(3)(A- B)(2011). 88 A Florida appellate court, for example, limited the application of that state s no more stringent statute to instances where state and federal regulations could be easily compared. Florida Elec. Power Coordinating Group, Inc. v. Askew, 366 So. 2d 1186, 1188 (Fla. Dist. Ct. App. 1978) ( the federal standard must be in counterpoise to the state standard. ) The court found that while the Clean Air Act provided such a basis for comparison (national primary and secondary ambient air quality standards), the Clean Water Act did not (technology- based vs. water- quality- based regulations). Id. at See also Organ, supra note 84, discussing the Florida Askew case. 14

16 requirements, 89 such that as a practical matter, whether a state has or has not expressly limited its own power makes little difference. The existence of no more stringent laws is therefore perhaps more a marker of a state s political attitude towards environmental regulation than an ironclad barrier to rigorous pollution control. Nevertheless, as we discuss below the options for states, tribes, and local governments to combat ocean acidification, we note that a few coastal jurisdictions will also have to surmount their own existing no more stringent laws. V. Ten Suggestions for State and Local Action 1) Create More Stringent Technology- Based Clean Water Act Standards for the Most Harmful Point Sources States and tribes implement the Clean Water Act primarily through two mechanisms: permitting specific levels of pollution from individual point sources (NPDES permits), 90 and assessing pollutant levels and allocating tolerable pollutant loads which, if achieved, will lead to protection of water quality (TMDLs). 91 These mechanisms function in tandem to apply the state s adopted water quality standards, which provide the particular targets for legally acceptable levels of water pollution. 92 Where a water body does not meet the applicable water quality standards, the state must list it as impaired and develop TMDLs for the pollutants leading to the impairment. 93 States thus implement the federal Clean Water Act 94 in part by setting water quality standards for water bodies within their jurisdictions. 95 Water quality standards for a particular water body consist of three parts: designated uses of the water body (e.g., swimming, shellfish culture, recreation), water quality criteria (numerical or narrative limits for particular pollutants sufficient to maintain the designated uses), and an anti- degradation policy. 96 However, much of the enforcement power of pollutant- discharge permits arises from federal guidelines that establish technology- based standards 97 for a wide variety of point sources. Only when these technology- based standards are insufficient to meet the water quality standards in particular, the designated uses of a water body do the 89 See Anderson, supra note National Pollution Discharge Elimination System, 33 U.S.C Total Maximum Daily Load; 33 U.S.C. 1313(d)(1)(C). 92 NPDES permit limits take the forms of technology- based limitations and water- quality- based limitations. However, water- quality- based limitations only apply if the technology- based limits are insufficient to meet the overall water quality standards. 33 U.S.C. 1311(b)(1)(C) U.S.C. 1313(d). This is known as the 303(d) list, having been section 303(d) of the Act U.S.C et seq C.F.R , C.F.R , 131.6; see also Nat l Res. Def. Council, Inc. v. Envtl. Prot. Agency, 16 F.3d 1395 (4th Cir. 1993). Note that under California s Porter- Cologne Act, which predates the federal Act, these first two parts are known as beneficial uses and water quality objectives, respectively. See U.S.C. 1311(b)(1)(C). 15

17 quality- based metrics begin to have real effect. 98 Because technology- based standards rather than water- quality based standards are a primary means by which the Clean Water Act functions, using state authority to alter or augment them is one of the most direct means of controlling acidifying discharges via the Act. Although it is not explicit in the Act, States and regional rulemaking bodies 99 have the authority to make these technology standards more stringent than the federal guidelines require. The Act contemplates a lead role for States in setting applicable clean water standards, and case law supports states power to create more stringent standards. For example, in Shell Oil Co. v. Train 100 the 9 th Circuit noted that Congress sought to recognize, preserve, and protect the primary responsibilities and rights of States to prevent, reduce, and eliminate pollution The role envisioned for the states under the 1972 amendments is a major one, encompassing both the opportunity to assume the primary responsibility for the implementation and enforcement of federal effluent discharge limitations and the right to enact requirements which are more stringent than the federal standards Congress clearly intended that the states would eventually assume the major role in the operation of the NPDES program. 101 The federal guidelines accordingly operate as a floor for clean water protection, rather than a ceiling, and, in general, states may make the guidelines more stringent than the federal EPA requires. 102 To better address the acidifying ocean, states and regional bodies could re- define the existing technology- based discharge standard for a subset of point sources that most strongly contribute to ocean acidification. 103 Those sources generating low- ph, high biological oxygen demand, or high nutrient output such as pulp mills, concentrated animal feeding operations, and sewage outflows are the most likely to contribute to coastal acidification through their discharges. By augmenting the federal technology- based standards to better control effluent ph of selected categories of point sources, states could therefore exploit a significant opportunity for mitigation. This change would only address point sources, which are subject to technology- based standards, rather than nonpoint sources, which constitute the majority of terrestrial 98 NPDES permit limits take the forms of technology- based limitations and water- quality- based limitations. However, water- quality- based limitations only apply if the technology- based limits are insufficient to meet the overall water quality standards. 33 U.S.C. 1311(b)(1)(C). 99 California, for example, has regional water boards that issue NPDES permits and which have the authority to create permit limitations F.2d 408 (9th Cir. 1978). 101 Id. at 410 (citations to the federal Clean Water Act omitted; emphasis added). 102 Washington State, for example, has altered technology- based effluent standards for combined waste treatment facilities and for municipal water treatment plants. See Wash. Admin. Code (a). Note that states with no more stringent laws face additional hurdles; see discussion supra. 103 The EPA provides guidance for supplementing existing categorical technology- based standards in the case of Publicly Owned Treatment Works. See at 1-3 ( EPA s promulgation of categorical standards does not relieve a POTW from its obligation to evaluate the need for and to develop local limits to meet the general and specific prohibitions in the General Pretreatment Regulations. ) 16

18 input to the coastal ocean in many regions. 104 Nevertheless, greater scrutiny of the most high- risk point sources would at least partially address coastal acidification and would have the additional benefits of minimizing eutrophication, harmful algal blooms, and hypoxic ( dead ) zones along the coast, ameliorating multiple ills with a single regulatory change. 2) Change Water Quality Criteria for Marine ph and Related Parameters More stringent water quality criteria could better protect coastal ecosystems via implementation under existing NPDES and TMDL programs where technology- based standards are insufficient to safeguard the receiving waters. If enforced, these criteria could alleviate both the ultimate (e.g., nutrient loading) 105 and proximate (ph change) causes of locally- intensified ocean acidification. However, water quality standards function mainly as a set of backup rules, behind the technology- based standards that the federal EPA has promulgated for various classes of dischargers. Only where technology- based standards are insufficient to safeguard the designated uses of a water body will a NPDES permit incorporate discharge limits tied to water quality. 106 In principle, TMDLs limit the overall amount of pollution not just that portion coming from point sources entering a particular water body and causing it to fall short of the published water quality standards. 107 In practice, the burden of bringing a water body 104 See generally, O.A. Houck, The Clean Water Act Returns (Again): Part I, TMDLs and the Chesapeake Bay, 41 Envtl. L. Reporter News & Analysis (2011)(nonpoint sources as primary issue in Chesapeake Bay cleanup effort). Michael Thomas, Assistant Executive Director of California s Central Coast Regional Water Quality Control Board, reports that in his region, the mass pollutant loading from irrigated agriculture [a nonpoint source] dwarfs all other sources. to RPK, Nov. 4, 2011 (on file with the author). 105 The Southern California Coastal Water Research Project is leading an effort to generate the necessary data for developing statewide nutrient criteria for use in TMDLs in California. See C.F.R , 131.6; see also Nat l Res. Def. Council, Inc. v. Envtl. Prot. Agency, 16 F.3d 1395 (4th Cir. 1993); K.M. McGaffey & K.F. Moser, Water Pollution Control Under the National Pollutant Discharge Elimination System, in Clean Water Act Handbook, 3d Ed. 27, 39(M.A. Ryan ed., 2011). 107 TMDLs for a given pollutant are allocated between point sources ( wasteload allocation ) and nonpoint sources ( load allocation ), 40 C.F.R (i), with a margin of error built in to account for uncertainty. The EPA may determine a reasonable margin of safety on an ad- hoc basis. See NRDC v. Muszynski, 268 F. 3d 91, 96 (2d Cir. 2001). For a cogent encapsulation of the non- mandatory nature of TMDLs, see City of Arcadia v. EPA, 265 F. Supp. 2d 1142, (N.D. Cal. 2003)( TMDLs established under Section 303(d)(1) of the CWA function primarily as planning devices and are not self-executing. Pronsolino v. Nastri, 291 F.3d 1123, 1129 (9th Cir.2002) ( TMDLs are primarily informational tools that allow the states to proceed from the identification of waters requiring additional planning to the required plans. ) (citing Alaska Ctr. for the Env't v. Browner, 20 F.3d 981, (9th Cir.1994)). A TMDL does not, by itself, prohibit any conduct or require any actions. Instead, each TMDL represents a goal that may be implemented by adjusting pollutant discharge requirements in individual NPDES permits or establishing nonpoint source controls. See, e.g., Sierra Club v. Meiburg, 296 F.3d 1021, 1025 (11th Cir.2002) ( Each TMDL serves as the goal for the level of that pollutant in the waterbody to which that TMDL applies... The theory is that individual-discharge permits will be adjusted and other measures taken so that the sum of that pollutant in the waterbody is reduced to the level specified by the TMDL. ); Idaho Sportsmen's Coalition v. Browner, 951 F.Supp. 962, 966 (W.D.Wash.1996) ( TMDL development in itself does not reduce pollution... TMDLs inform the design and implementation of pollution control measures. ); Pronsolino, 291 F.3d at 1129 ( TMDLs serve as a link in an implementation chain that includes... state or local plans for point and nonpoint source pollution reduction... ); Idaho Conservation League v. Thomas, 91 F.3d 1345, 1347 (9th Cir.1996) (noting 17

19 into compliance falls on the NPDES- permitted point sources rather than nonpoint sources, because NPDES permits for discharge into impaired waters grow more stringent in an attempt to remedy the impairment. 108 Unless states demand otherwise, nonpoint sources run up the bill, and point sources are stuck paying the check. TMDLs thus have little in the way of mandatory authority over existing nonpoint sources, their prime regulatory targets. 109 States could give them teeth by imposing real limits on nonpoint source pollution. States have the sole authority to regulate nonpoint sources under the Clean Water Act, and therefore have the discretion to implement a TMDL s load allocations as they see fit. 110 If accompanied by enforcement measures, TMDLs could form the basis of nonpoint source regulation that could significantly improve the quality of coastal waters. 111 Of course, this has been the case all along, and the failure of states to create enforceable TMDLs is a well- known problem. 112 Nevertheless, TMDLs offer some benefits even in the absence of mandatory pollution limits. Most prominent among these is greater protection for already- impaired water bodies, as the TMDL bars new point source permits for discharges that would cause or contribute to the violation of water quality standards. 113 This provision could be of particular use in impaired coastal areas with increasing urban and industrial density, forcing parties to the table to grapple with how to maintain local water quality and balance its uses appropriately. The TMDL process also generates a level of visibility that could be helpful in the case of ocean acidification, an issue that is still emerging into regulatory consciousness. Finally, because our understanding of coastal acidification has been hindered by a scarcity of reliable monitoring, the data- collection aspect of a TMDL process would also be valuable. that a TMDL sets a goal for reducing pollutants). Thus, a TMDL forms the basis for further administrative actions that may require or prohibit conduct with respect to particularized pollutant discharges and waterbodies )(emphases added). 108 See Friends of Pinto Creek, 504 F. 3d 1007, (9 th Cir. 2007)(interpreting the Clean Water Act s TMDL provision and its impacts on point and nonpoint sources); see also O.A. Houck, The Clean Water Act Returns (Again): Part I, TMDLs and the Chesapeake Bay, 41 Envtl. L. Reporter News & Analysis 10208, (2011)(discussing the impact of nonpoint regulation on point sources). 109 See Note ##, supra. However, note that California s Porter- Cologne Act requires even nonpoint source dischargers to file for permits; see Water Code 13260, Although presumably these permits do not account for most nonpoint source pollution, failing to file for a permit is a misdemeanor and also punishable by civil fine. Water Code Note also that California s regional water boards and the California Coastal Commission accordingly see TMDLs as largely informational, rather than regulatory. For example, California s Nonpoint Source Implementation Plan describes TMDLs as planning tool[s] that will enhance the State s ability to foster implementation of appropriate NPS [management measures]. By providing watershed- specific information, TMDLs will help target specific sources and corresponding corrective measures and will provide a framework for using more stringent approaches that may be necessary to achieve water quality goals and maintain beneficial uses. State Water Resources Control Board and California Coastal Commission, Nonpoint Source Program Strategy And Implementation Plan, (PROSIP), Vol. I at ii (Jan. 2000). 110 Pronsolino v. Nastri, 291 F. 3d 1123, 1140 (9 th Cir. 2002). 111 Note that the California Nonpoint Source Implementation Plan sets out 61 management measures (akin to best practices) that bear on various sources of nonpoint source pollution. State Water Resources Control Board and California Coastal Commission, Nonpoint Source Program Strategy And Implementation Plan, (PROSIP), Vol. I (Jan. 2000). These are largely voluntary, with state- provided incentives for participation that include grants under CWA 319(h) and also waivers of waste discharge requirements. 112 See Houck, supra note ##, and refs therein C.F.R (i). See also Pinto Creek, supra note

20 Because of the spatial variability inherent in the coastal ecosystem, making blanket rules for nonpoint source pollution could be an overbroad approach to addressing acidification. Conversely, creating many watershed- specific rules is difficult from a technical standpoint and is labor intensive. A patchwork of regulation would also erode regulatory certainty for landowners and increase their costs of gathering information. If wide swaths of coastline share particular chemical/ecological properties, regional- scale rules may make both permitting and enforcement easier while effectively improving the health of the coastal ocean. a. TMDLs for Non- Atmospheric Drivers of Acidification Federal guidelines exist as baseline numerical water quality criteria for ph, dissolved oxygen, nitrates, and phosphates, 114 among other acidification- relevant parameters. As with technology- based standards, states are free to make these criteria more stringent than the federal guidelines, and states are free to establish criteria for pollutants for which federal guidelines do not exist. 115 The criteria are reviewable by administrative action rather than legislation, making them easier to adjust in the face of the ocean acidification science that is developing rapidly. Agencies have so far been slow to translate the growing mass of data on ocean acidification into action. In 2008, Washington State declined to include any marine waters on its list of impaired water bodies, resulting in a lawsuit by the Center for Biological Diversity and subsequent settlement. 116 As a result of that settlement, the federal EPA requested data on the matter and considered altering the national guideline for marine ph. 117 The EPA ultimately decided against adjusting its guidance for water quality criteria with respect to ph, citing insufficient information to change the federal standard. 118 No state has yet created a more stringent guideline. Like the federal EPA, California s state 114 Each of these parameters is directly relevant to ocean acidification: ph measures the acidity directly, dissolved oxygen is inversely correlated with the eutrophication associated with local nutrient plumes, and both nitrates and phosphates are constituent elements of such plumes. Because eutrophication can lead to acidifying bottom waters particularly in stratified water columns and water bodies with long residence times it contributes to coastal acidification. 115 See, e.g., PUD No. 1 of Jefferson County v. Washington Dept. of Ecology, 511 U.S. 700, 713 (1994)( The State can only ensure that the project complies with any applicable effluent limitations and other limitations, under 33 U.S.C. 1311, 1312 or certain other provisions of the Act, and with any other appropriate requirement of State law. 33 U.S.C. 1341(d). As a consequence, state water quality standards adopted pursuant to 303 are among the other limitations with which a State may ensure compliance through the 401 certification process [A]t a minimum, limitations imposed pursuant to state water quality standards adopted pursuant to 303 are appropriate requirements of state law. )(underscoring the significant state authority to impose restrictions on applicants under the Clean Water Act, and suggesting that state water quality standards are not limited by those set out by the federal EPA.) 116 Center for Biological Diversity vs. EPA, No.2:09- cv JCC (W.D.Wash.2009); 75 Fed. Reg (March 22, 2010). Washington has since labeled the acidified Puget Sound as waters of concern. See Fed. Reg (March 22, 2010). 118 See EPA Memorandum: Decision on Re- evaluation and/or Revision of the Water Quality Criterion for Marine ph for the Protection of Aquatic Life. (Apr. 15, 2010). 19

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